QMy mother invited a friend who was down and out to stay with her while she got herself back on her feet. The friend turned out to be an extremely unethical, manipulative woman who is now refusing to move out of my mother's home after staying there for almost one year without paying any rent. My mother has asked her to leave; she said no. I want to know if she has any tenant rights. She has never signed a lease or paid even one dime of rent. I would like to have the police department remove the woman. This is a distressing situation, so I would appreciate any help that you can give me.

ALandlord's attorney

Smith replies:

This is a tough question. From a legal standpoint, it is difficult to characterize the type of tenancy the manipulative friend has in the house.

She is neither a month-to-month tenant nor a leaseholder, having never paid rent nor executed any written agreement. On the other hand, she is not a trespasser, having obtained consensual possession originally.

Landlord-tenant law would describe her occupancy of the house as a tenancy-at-will. This type of tenancy may be terminated by written 30-day notice followed by an eviction lawsuit. As an alternative to an eviction, I would suggest that your mother consider obtaining a restraining order to remove the woman from the house. Check with a lawyer in your area to see if you have laws that address this problem. Some states have elder abuse laws and family codes that provide for kick-out orders in similar situations.

Tenant's attorney Kellman replies:

I agree with Ted that this woman is probably a tenant-at-will. As such, her tenancy may be terminated with a 30-day notice (or a 60-day notice in some areas) followed by an eviction court case if she refuses to move.

Take care, however, because if she claims to pay rent with services or other things of value, she may not be a tenant-at-will at all.

Some states will make an exception to the normal court eviction rule under certain circumstances. For example, if your mother is the owner of the home and this woman is the only boarder, she may be able to have her evicted by the police without having to go to court. In that case, you would serve her a 30- or 60-day notice. Then, if she does not leave, call the police. They could then remove her as a trespasser.

Restraining orders are not favored by the courts as an eviction tool. That procedure is reserved to prevent violence or other serious threatening or harassing conduct.

I leased out my condo last year. Before the renters moved in, we did a walk-through inspection. The only item noted that needed fixing was a closet door. I received a note last week from the tenants stating that the carpet in the living room was not in good condition. They suggested amending the rental agreement to reflect the carpet not being in good condition.

To my knowledge the carpet is fine. I had the carpet re-stretched, new padding was added and the carpet was cleaned thoroughly before they moved in. Do I have to amend the agreement as they requested?

Landlord's attorney Smith replies:

You should not acknowledge that the carpet is in poor condition. Further, you are not legally required to modify your rental agreement.

As the landlord's attorney, I think you should turn things around. Get the tenant to sign an addendum to the rental agreement that acknowledges that you have stretched and cleaned the carpet and that it was approved by them.

Tenant's attorney Kellman replies:

Ted is right when he says that you do not need to modify the rental agreement based on the tenants' request to do so. The facts control the situation regardless of that amendment.

Here, you say the carpet was fine. You replaced the padding, had it stretched and then cleaned. Despite these efforts the tenants said the carpet was not in good condition. What a surprise. Carpet has a limited useful life and after that time passes, usually about seven years or so, it needs to be changed. Replacing worn-out padding and then restretching it leads me to believe the carpet had outlived its useful life and should have been replaced.

Of course, the carpet may have looked fine right after a cleaning and restretching, but those are temporary fixes that do not last long. It is reasonable that after a few months, the carpet reverted back to its "replace me" condition.

Old carpet can surely be a habitability concern. Due to its age, it may trap mold or other contaminants that may not be cleaned effectively any more. Old carpet also causes trip-and-fall or carpet-nail-puncture hazards. You do not need to change the lease, just the carpet.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenant's Legal Center, and Ted Smith, principal in a firm representing landlords. E-mail your questions to Griswold at rgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.

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